Shrader v. Shrader

SteveNS, J., delivered the opinion of the court. Appellee by bill in 'equity claims title to eighty acres of land in Sunflower county, >asks that her title be confirmed, and that the claim of appellant he canceled as a cloud upon the alleged true title of the complainant, and prays for possession and for an accounting as to rents. The bill avers that the complainant is the lawful widow and sole heir at law of R. M. Shrader, deceased; that R. M. Shrader died seised and possessed of the lands in suit; and that, under the law of descent and ' distribution, complainant is now the sole owner. The record presents the rival claims of the legal wife and the de facto wife of R. M. Schrader, deceased. From the pleadings and the proof it appears that R. M. Shrader was lawfully married to Mrs. Addie Ried, present appellee, in Shelby county, Ala., in May, 1900, and thereafter lived with her as his lawful wife for two or three years at Vincent, Ala.; that R. M. Shrader then deserted his wife, and moved to Sunflower county, Miss., where he passed himself oft as a single man, and where he in due form intermarried appellant, then Mrs. Emma McDill, a widow. His marriage to appellant was — 533 — in pursuance of a license and in the form prescribed by statute. After his marriage to appellant in January, 1905, Shrader lived with his Mississippi wife until June 30,1915, the date of his death. After his death appellant applied for letters of administration'on his estate, and letters in the usual form were issued to her as adminis-tratrix. Thereafter appellee, the Alabama wife, presented a petition to the chancery court asking that letters of administration to appellant be revoked, and that letters he issued to petitioner, and in this petition facts similar to those charged in the bill were presented to the court. The chancellor, upon hearing, revoked the letters theretofore issued to appellant; but instead of issuing letters to the petitioner, the Alabama wife, the learned chancellor appointed the clerk of his court administrator. From the decree of the chancellor appointing the chancery clerk administrator an appeal was prosecuted to this court, and the action of the chancellor approved, and the cause affirmed, as reflected by the opinion of this court in Shrader v. Johnson, 116 Miss. 467, 77 So. 301. The lands involved in this suit constituted the homestead of E. M. Shrader in his lifetime,' and after his death appellant continued in possession, and was in the actual possession of the land at the time this suit was instituted. The present bill was met by an answer denying that the complainant was the lawful widow and sole heir at law, and denying the other material allegations of the bill, and her answer is made a cross-bill, in which it is charged with sufficient particularity the facts and circumstances under which cross-complainant intermarried with E. M. Shrader; charged that cross-complainant was induced to marry E. M. Shrader under the belief that he was a single man; that the lands in controversy were purchased with moneys advanced by cross-complainant; that cross-complainant is entitled to have the court decree a resulting trust in her favor, and that she be decreed the true and equitable owner of the — 534 — lands; and prayed, further, that complainant and cross-defendant by her conduct and silence is now estopped from making any claim to the premises, and' that equity should decree cross-complainant the true owner. The cross-bill was answered, and upon issue thus joined much testimony was taken on both sides. On final hearing the chancellor decreed in favor of appellee, and from this decree the Mississippi wife appeals. The proof shows that appellant was the widow of one J. A. McDill, and as such inherited from McDill certain live, stock, money, and other personal property; that McDill had some children by a former marriage, and' that appellant had some children by her marriage with1 McDill. At the time it. M. Shrader appeared near Lynn, in Sunflower county, Shrader possessed nothing in the way of property, one witness observing that he was “in poverty’s oath.” 'He gained the confidence of appellant; represented himself as an unmarried man, and appellant in fact married him under the firm belief that he was a single man. In 1908 appellant and B. M. Shrader negotiated for the purchase of the eighty acres of land, the subject of this litigation, and the land was purchased from C. M. Avent for nine hundred dollars, two hundred dollars cash, the balance to be paid in four installments of one hundred and seventy-five dollars each. The proof shows that appellant expected the deed to be executed in her favor, and that she furnished the initial cash payment of two hundred dollars. While the testimony for both sides took a somewhat wide range, there is but one conclusion to be drawn from all the testimony in - the ease upon the issue as to who furnished the consideration for the purchase of the lands. We are of the opinion that the testimony shows beyond dispute that the title to the land was to be in the name -of appellant; that appellant furnished two hundred dollars cash; that the next five hundred dollars was paid from timber taken from the lands themselves, and that the last payments were paid by — 535 — appellant; that the details of the deal were seen after by B. M. Shrader, and in closing the deal Shrader took title in his own name and contrary to his understanding with appellant; that when appellant discovered this fact she protested, consulted friends in reference to the matter, and that thereupon Shrader admitted that the consideration had been furnished by appellant and promised to have the deed changed. The testimony further tends to show that appellant’s friends advised her it made no difference who held the legal title; that the lands would be the homestead, and upon Shrader’s death appellant would inherit the lands. Believing that Shrader was her lawful husband, having no intimation to the contrary, appellant, it appears, felt secure, and took no action to have the deed changed, and even at the time of Shrader’s death fully believed that these lands would become her individual property. But after Shrader’s death appellee suddenly appeared upon the scene, asserted that she was the lawful wife, that there had been no divorce, and that by virtue of the laws of Mississippi she is the sole owner. It would protract this discussion very much' to state in detail the testimony of the several witnesses. It is sufficiently shown that appellee was lawfully married to B. M. Shrader in Alabama, and no divorce had ever been granted.. It is equally well established that appellant innocently married B. M. Shrader, and that she has been the subject of gross imposition and fraud. The proof shows that appellant was a virtuous and hardworking woman, and that her labors continued during the time of her marriage; that she and her children were making their own living at the time Shrader appeared and ingratiated himself into her confidence; that Shrader had nothing at the time the lands were purchased; that appellant and her children cleared the land, and put it in a state of cultivation; that she performed well her domestic duties and continuously toiled in the garden and fields. We quote portions of the — 536 — testimony to illustrate the force and positive character of the testimony relied upon by appellant. J. N. Nicholson knew the parties well, lived in the same neighborhood, knew the lands and some of the details in reference to the purchase thereof. He states, among other things: “Miss Emma had some stock and she sold it to get the money to buy the land. The stock was formerly McDill’s stock. ’ ’ That he knew the live stock which appellant sold, and had personal knowledge of sales of this stock, amounting to about one hundred and twenty-five dollars. He states without qualification that the two hundred dollars was paid from proceeds of the sale of the cattle. He also states that, when the deed was taken in the name of R. M. Shrader, “Miss Emma raised a howl because she had paid the money and Boh took the deed to him.” According to Nicholson, Shrader was not an industrious man — ‘ ‘ ate up more than he ever made; ’ ’ stated to the witness “he was not going to work when he had somebody cooking for him;” that “Bob never paid anything for it (the land);” that “the timber on the land was sold for five hundred dollars,” etc. The statements of witness J. H. Love are equally as strong. He testifies: “Mrs Shrader paid for it because he did not have anything to pay for it with. He told us that Emma paid for the land. She made the first payment and I know she made the last payment. I heard him say that, she furnished the money to make the payments on the land. The timber paid for a part of it, and she put up the money for the rest. I have heard him say that different times.” These two witnesses were disinterested, having no possible interest in the result of this litigation. Love further states: “Mrs. Shrader and her children did most all of the work in clearing up the land;” that “I heard him — 537 — promise her that he would have her name put on the deed. He told her that it didn’t make no difference whether her name was on it or not.” Mr. Powell, a prosperous farmer and former justice of the peace, one who had no interest to serve, stated that Shrader “did not have a thing in the world— nothing, you might say; a pauper. ’ ’ He further testifies that MeDill had a bunch of cattle, a pair of mules, and a mare or two; that he made the division of the cattle among the heirs himself. Hugh Young, a farmer with no interest to promote by any statements of his on the witness stand, testified to a conversation between Shrader and the appellant to the effect that they were selling the cattle to get money with which to buy the land, stated that the second payment was made from the timber, and that Shrader so acknowledged a number of times. All witnesses recognized Shrader as indifferent and of no account — one thoroughly insolvent. All bear testimony to the good character and industrious habits of appellant. The only fair inference from the testimony is that appellant was as much the breadwinner as the thriftless husband with whom she lived. The proof then justifies the claim of cross-complainant of a resulting trust in the lands here involved. One familiar illustration of a resulting trust is in those cases where lands have been bought with the wife’s means and title taken in the husband’s name. In the note to Haney v. Legg, 129 Ala. 619, 30 So. 34, 87 Am. St. Rep. 81, it is stated, “A resulting trust in favor of a wife is presumed from the purchase of property by her husband with her money and the taking of title in his name;” citing authorities. No legal reason has been offered why a trust should not be impressed in the present case. The learned chancellor entered a general decree in favor of appellee. We fully recognize the force which his decree would have upon issues of fact, but on the present record we believe the chancellor was — 538 — manifestly wrong. The only question is the sufficiency of the proof. It is true the exact details are not in 'evidence as to the last payment upon the lands. There can he no possible question of the fact that appellant furnished the first payment of two hundred dollars, and that the timber thereafter paid five hundred dollars of the moneys. This only left two hundred dollars of the purchase money, and under any view of the facts, as stated by the supreme court of Alabama in Haney v. Legg, supra, — “It is not indispensable,. however, that the whole of the purchase money should have been paid out of the funds belonging to the complainant. If any. portion of it was her money, a resulting trust arises in her favor to the extent of the sum so used.” But the facts, we think, are sufficient to show that appellant paid the total consideration and that Shrader so acknowledged. It is certain that" he took the title in violation of his agreement with appellant, and that he promised to have the deed changed. A prominent feature of this case is the admitted fact that appellant at all times was innocent while her reputed husband was guilty of gross wrong and fraud. Appellant is the innocent victim of this fraud. Her trusting nature was violently imposed upon. Shrader married this good woman of Mississippi under false pretenses, and daily repeated his deception, and continued to assume a fraudulent attitude toward her until his death. It is suggested that appellant is estopped now to claim these lands, first, because she filed a sworn petition in the chancery court of Sunflower county averring thát B. M. Shrader died intestate, seised and possessed of certain personal property, as also the lands now in dispute; secondly, by her conduct in knowing that the- deed had been taken in Shrader’s name, and in failing to file a seasonable action in court to compel a conveyance from Shrader in his lifetime. — 539 — There is no merit, we think, in either contention. The petition for leters of administration was the usual pro forma petition, one required by the statute, and any reference to real estate was unnecessary. The primary object of administration is to take charge of and administer the personal property and pay debts. There is no contention that the real estate was charged with the debts of Shrader’s creditors. Furthermore, it is shown without dispute that the petition for letters was sworn to- at the time when appellant still firmly believed that she had been lawfully married to R. M. Shrader, and before the facts under which appellee’s claim was propounded had been fully developed. It is intimated that the previous decisions of this court in the controversy between these parties over the right to administer practically adjudicated the present- controversy. This cannot be. The court on the former hearing decided nothing as to the rival claims of the parties. The chancellor simply appointed the chancery clerk administrator and his action this court on appeal affirmed. Appellant is in no way estopped. If she had entered into the marriage contract with R. M. Shrader knowing at the time that he was a married man with a living wife, or if she had ascertained this fact after marriage, and continued notwithstanding to cohabit with Shrader as his wife, there would be some, ground for estoppel as against her. But the estoppel is more against R. M. Shrader and those who take from him, except bona-fide purchasers for a valuable consideration without notice. The legal status of parties who for a long period of time have lived as husband and wife, believing that they were lawfully married, was elaborately discussed in Johnson v. Johnson, 1 Cold. (Tenn.) 626. It is there stated: “And the principle is equally familiar, that where persons have represented themselves to be married, or have assumed the relation of husband and wife, cohabiting and holding themselves out to the public as — 540 — such, though not in fact married, they will, when it is sought to charge them with any of the civil liabilities growing out of that relation, be conclusively presumed to sustain such relation to each other, and will not be permitted to disprove or deny the marriage. 1 G-reenleaf’s Ev. sections 27, 207. It is laid down by Starkie that in an action against husband and wife it is sufficient to'prove the marrige de facto by evidence of cohabitation, acknowledgment, or reputation, and they cannot prove in defense that they were not legally married. 2 Starkie’s Ev. 691, 3 Am. Ed., 2 Salk. 437; Divoll v. Leadbetter, 4 Pickering’s R. (Mass.) 220. “Whether or not such persons can acquire rights as against others, it is clear that others may acquire rights against them. And the principle of estoppel, upon which this doctrine rests, and which is based upon 'principles of morality as well as of public policy, must be held to apply equally to goth parties; the woman in such case is no more privileged to commit fraud or crime than the man. “And if they are estopped, as to third persons, why shall they not, as against each other, in all civil cases, be also precluded from gainsaying the marriage? Do not the samé reasons of morality and policy apply in the one case as in the other? And more especially should they be held to be estopped, as between them-svelves, when .either is seeking to disturb or defeat rights which may have been acquired by the other, either directly or indirectly, on the faith of the marriage.” To the same affect are the announcements of the supreme judicial court of Massachusetts in Batty v. Greene, 206 Mass. 561, 92 N. E. 715, 138 Am. St. Rep. 407, and the supreme court of Missouri in Davis v. Cummins (Mo.), 195 S. W. 752. The fraud of Mr. Shrader may well be described in the following language of the Massachusetts court in Batty v. Greene: — 541 — “Day by day and hour by bonr did this woman, by maintaining in appearance the relation of a lawful wife, renew and repeat' this fraud. The concealment was continuous, and the fraud was as continuous as the concealment. It existed at the time of the marriage, and at ihe respective times when Batty contributed to the common fund. And this suit is not based upon the concealment when the marriage ceremony took place, but upon that existing when Batty parted with his property. In every proper sense the property, although not obtained at the time the concealment began, was obtained by the concealment existing at the time it was passed to the offending party and as the direct consequence of the resulting fraud. See Morrill v. Palmer, 68 Vt. 1, 33 Atl. 829, 33 L. R. A. 411.” And the true status of the second Mrs. Shrader, both as to a resulting trust and the alleged estoppel, is strikingly similar to that of Mary C. Grimes, the claimant in Davis v. Cummins, and is well indicated by the following language of the Missouri court: “It clearly appears that through fraud E. G. Davis acquired possession of the money and property of Mary C. Grimes while insolvent himself, converted the same to his own use, received and appropriated to his own use the rents and profits of her land, and with her said money and property purchased the five-sevenths and six-sevenths interests in said three hundred and thirty acres, and took the title thereto in his own name. It further appears that he continued said fraud up to the time of his death, and during said period induced her to believe — and she did believe — that he was her lawful husband. If both Davis and wife were still alive, and she were suing him in equity to divest him of tlm title to said real estate, acquired by him under the circumstances aforesaid, it would be our plain duty to declare a constructive trust in her favor, to hold him as trustee in invitum, and to divest him of the title to the property acquired through her means. Appellants occupy no — 542 — better position upon this record than would E. G. Davis himself if he were alive and sued by respondents.” There can be no question, then, under the authorities mentioned and under sound principles of equity and good morals, that as between R. M. Shrader and his Mississippi wife the former would be estopped, after the lapse of more than ten years, during which time he and appellant openly lived together as husband and wife, now to plead the illgality of the marriage in any contest over property rights. To what extent this estoppel may be applied as against Shrader’s former wife or next of kin there may be some question. There is room on the facts of this case to conclude that appellee had knowledge of the fact that her husband had married in Sunflower county, Miss.; that she possessed this information for many years; that she was not interested in pursuing or seeking any relief against her husband; that she resumed her former name of Mrs. Addie Ried, and by that name was known upon the church register and by her intimate friends; and that she refused to correspond or to inquire as to her husband, because she had no interest in him, and did not even want to convey the impression that she was inquiring after him. Witness J. W. Powers, who married the daughter of appellee, and with whom ap-pellee made her home at Vincent, Ala., testified that he visited Sunflower county in 1912, and went to the home of R. M. Shrader, and there ascertained the fact that he was openly living with appellant; that he conversed with Mr. Shrader, but had no conversation with appellant, and was careful to conceal from appellant his relationship to Shrader or the facts in reference to his former marriage. It is interesting to note that Powers bears testimony to the innocence and industry of appellant, who according to his statement, was “ working in the garden at her home.” Mr. Shrader asked Powers “to say nothing about it” when he returned to Alabama, and witness ‘ ‘ agreed not to mention it; ” that is, the — 543 — fact that ■ Shrader and appellant were then living together in Mississippi. Bnt this testimony shows clearly that a member of appellee’s family had actual knowledge of the facts, and that appellee could easily upon inquiry have ascertained the same facts. In this regard the case, while not so strong upon the facts, resembles somewhat the case of Woodson v. Colored Grand Lodge of Knights of Honor of America, 97 Miss. 210, 52 So. 457. But the decision of the present case need not rest upon estoppel or the authority of the Woodson Case. Here appellant only contends for her own property. To deny appellee any rights in the homestead purchased with appellant’s means would accomplish what appellee admits would he a righteous result. On cross-examination she was asked, in reference to any property of appellant, “You do not seek any of her property, nor do you want to take from her any property that was ever hers? A. No; of course, I would not want anything that was hers.” Under the law and controlling facts, the property sued for should be awarded to appellant. Any other result, we think, would he contrary to sound principles of morality, would intensify and place a premium upon the double dealing and fraud of B. M. Shrader, deceased, and would deny a remedy for a just and equitable right. jReversed, and decree here for appellant.